Defendants
United Energy Workers Healthcare Corp. and Kentucky Energy
Workers Healthcare, LLC (collectively “UEW”)
filed a Motion to for Reconsideration (Docket #135) of this
Court's February 2, 2017 Order Regarding Production of
Patient Caregiver Notes. (Docket #95). Plaintiff Act for
Health d/b/a Professional Case Management and Professional
Case Management of Kentucky (collectively “PCM”)
filed a Response in Opposition (Docket #136). Fully briefed,
this Motion is now ripe for adjudication.

For
reasons detailed below, the Court DENIES the Motion for
Reconsideration. (Docket #135).

Background

PCM is
licensed to provide skilled and unskilled home health care
services to patients in their own homes in four counties in
Kentucky serviced by PCM (Lyon, Marshall, McCracken, and
Graves, hereinafter the “PCM Counties”). (Docket
# 43 at 2; Docket #57 at 3). UEW is certified under Kentucky
law to provide personal care (or “unskilled”)
services in Kentucky. (Docket # 35 at 1). PCM alleges that
UEW engaged in unfair businesses practices, in part, by
providing home health care services in Kentucky without
having the necessary licenses to do so. (Docket # 43 at 2).
Further, PCM alleges that UEW received reimbursement from the
Department of Labor (the “DOL”) for providing
home health care services to individuals in Kentucky covered
under the EEOICPA. (Id. at 3).

Prior
to any discovery motions having been filed, the parties
entered into a Protective Order (Docket #23) which provided
for documents to be designated as “confidential”
by both parties and limited those designated documents'
usage and disclosure outside the instant lawsuit.
Id. The parties also agreed to a system of assigning
numbers to each individual receiving care to protect their
privacy, avoiding producing documents with individuals'
names. (Docket # 43 at 8).

Significant
disputes between PCM and UEW arose regarding document
production resulting in PCM's first Motion to Compel (the
“First MTC”). (Docket #43). This Court granted
the First MTC, in part, ordering UEW to provide PCM
“full, redacted billing records for all individuals in
Kentucky to whom UEW has provided services under the EEOICPA
program” within 45 days following the entry of the
Order. (Docket #49 at 5).

The
First MTC Order was entered on August 2, 2016. (Docket #49).
UEW did not produce any documents to PCM until final day for
compliance under the Order, whereupon UEW provided a 39-page
summary (the “Summary”) in lieu of the
“full billing records” previously ordered by this
Court. (Docket #63 at 4). The Summary was designated
“confidential” by UEW. The parties met and
conferred, resulting in UEW producing OMB-1500 forms for all
Kentucky patients but still not providing Caregiver Notes,
which all parties agreed are part of the full billing record.
(Docket #63 at 4). The OMB-1500 production took place
approximately one month after the deadline in mid-October of
2016. Id.

At some
time following the September 16, 2016, deadline to produce
full billing records, UEW did produce Caregiver Notes for
five (5) specific patients identified by PCM (the
“First Production”). (Docket #64 at 3). UEW
claims that the Caregiver Notes for five patients took two
UEW employees more than 70 hours to perform redactions on
over three thousand (3, 000) pages before they could be
produced but did not indicate the actual cost of production.
Id.

On
October 24, 2016, PCM filed a Motion to Compel UEW to: 1)
produce all “Caregiver Notes” relating to all
clients UEW served in Kentucky; 2) produce an un-redacted
list of all UEW's referral sources (the “Referral
List”); and 3) remove the “confidential”
designation from a previously produced billing summary.
(Docket #63). Following consideration of the briefs filed by
all parties, the Court ordered that PCM was to identify 31
patients by number, provide that list of numbers to UEW, and
that UEW was to produce full Caregiver Notes for the 31
individual files selected by PCM.[1] (Docket #95). The
Court's order also gave UEW the option to determine
whether or not to redact the Caregiver Notes before
production or to seek an alternative production method.
(Id.).

On
February 24, 2017, PCM selected 15 patients whose caregiver
notes it wanted produced and provided that list to UEW.
(Docket #135-1 at 3). On April 4, 2017, UEW produced
caregiver notes for the 15 patients (the “Second
Production”). Upon completion of the Second Production,
UEW had produced a total of 20 sets of caregiver notes to
PCM. Pursuant to the Court's Order, there were an
additional 16 sets of caregiver notes remaining (the
“Remaining Production”) to be produced by UEW
after the Second Production was complete. (Docket #95).

The
Second Production comprised over 15, 000 pages, of mostly
handwritten notes. (Id. at 3-4). UEW spent over $51,
000 to produce those notes apparently utilizing a different
system of production from the First Production, including the
labor of two UEW employees, the employment of a contract
review team, and work by UEW's counsel and support staff.
(Id. at 4). Prior to supplying PCM with the Second
Production, in March of 2017, UEW reached out to PCM
requesting that PCM withdraw its request for the Remaining
Production, alleging that the Remaining Production would be
“unduly burdensome and time consuming.”
(Id.). UEW went on to state that it was considering
requesting reconsideration of the Order (Docket #95) if PCM
did not withdraw its request for the Remaining Production.
(Id.).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;PCM did
not withdraw its request for the Remaining Production and on
July 19, 2017, sent a list to UEW selecting the remaining 16
patients. (Id.). UEW estimates that it would likely
spend an ...

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